Labor demands an encryption fix now

Denham Sadler
Senior Reporter

Federal Labor has called on the government to fix its highly controversial encryption legislation now instead of waiting for two inquiries to report back in a year.

The Assistance and Access Act was passed during a farcical last sitting day of 2018 with support from Labor. The legislation gave government agencies and law enforcement the power to compel tech companies to provide access to encrypted data.

When agreeing to pass the bill, the Opposition said it had secured an agreement from the government, through Finance Minister Mathias Cormann, that further amendments would be considered to the bill to meet the recommendations of the Parliamentary Joint Committee on Intelligence and Security (PJCIS).

But these amendments never appeared, and the Assistance and Access Bill has remained unchanged since it was passed.

The powers are currently the subject of two significant inquiries. The PJCIS is conducting its third review of the Act, while the Independent National Security Legislation Monitor (INSLM) is also investigating the powers.

Both of these inquiries have been delayed though, with the INSLM to report back by June, and the PJCIS by September.

The Coalition has to go through the motions and push back the PJCIS reporting date through legislation.

The bill to achieve this was debated in the lower house on Monday, with Labor using it as an opportunity to line up to criticise the government’s handling of the encryption legislation, its apparent broken promise, and new concerns that the powers may prevent Australia from securing a speedy data-sharing agreement with the US.

It was revealed in October that the encryption powers may stand in the way of Australia reaching a CLOUD Act agreement with the US, which would give law enforcement expedited access to data held by American tech companies.

Shadow Attorney-General Mark Dreyfus slammed the continual delays to the inquiries, and called on the government to move now to make the necessary fixes rather than wait another year.

“These processes should not get in the way of the government introducing legislation right now to ensure that the measures that were introduced by the Assistance and Access Act conform to recommendations made by the PJCIS in December 2018 and secondly are subject to robust, substantive and procedural protections,” Mr Dreyfus said in Parliament.

“Labor is ready and willing to work with the government to ensure the measures introduced by the Act are amended and to address any and all obstacles to secure the best outcome for Australian police and agencies, and the Australian people.”

Labor attempted to add its own amendment to the bill, raising concerns that the encryption powers will get in the way of the CLOUD Act, and calling on the government to “work proactively with Labor” on the necessary amendments.

The Opposition’s amendment was easily shot down, and the legislation facilitating the delayed reporting date for the PJCIS sailed through the lower house, with support from Labor.

It is a “complete and utter disgrace” that the legislation has reached this point unamended and the inquiries won’t be reporting back until late next year, Labor MP and former shadow digital economy minister Ed Husic said.

“Why do we need to extend this period of time when we know what all the flaws are now – they should be fixed now,” Mr Husic said.

“We will not as a Labor opposition give up at all on pressing the case that these laws need to be fixed, to ensure from a national security perspective that we get access to the type of data that is needed to prevent harm, and to make sure the Australian tech sector is not treated like a pariah on the world stage,” he told the Parliament.

The Labor Ministers slammed the Coalition and Senator Cormann, claiming they broke a promise to move a number of amendments to the legislation at the start of this year.

“The bill before the House represents a series of failures – a failure of process, a failure of bipartisanship, a failure of the Morrison government to keep its word and a failure of this place to legislate in a way that supports the growth of the Australian tech sector,” shadow assistant minister for cybersecurity Tim Watts said.

When Labor was originally questioning the legislation late last year, government ministers accused the party of putting national security at risk.

Now Labor is using this tactic against the Coalition, accusing it of putting national security risk by jeopardising chances of securing a CLOUD Act agreement.

“Their failure to do the right thing has caught up to them. Their failure to address those flaws in the way the PJCIS recommended they be fixed has led to an inability to access data because our arrangements won’t conform with the CLOUD Act,” Mr Husic said.

“It’s now catching up with the government. Their failure to fix that act has jeopardised national security.”

Shadow innovation minister Clare O’Neil said there is “no better example” of the Parliament’s tech problems than the passing of the encryption legislation.

“When we make decisions like the one that led to this bill, then we do a disservice to the industry we need to be building and growing, because that is our economic future,” Ms O’Neil said.

“And here we are almost a year on having an agreement of trust between the government and opposition being broken. It is incredibly disappointing.”
She said the encryption powers are the number one issue raised with her by the tech sector, and that it is “emblematic” of the government’s approach to the digital economy.

“The government has been in office for seven years and still has nothing to say on these matters except an incredibly damaging piece of legislation that they promised they’d fix but have done nothing about,” she said.

The Coalition declined to be involved with the debate, with its side of the chamber left mostly empty through the Labor ministers’ speeches.

Do you know more? Contact James Riley via Email.

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